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Criminalization out of Control

This article orginally appeared in the Baltimore Sun on
June 17, 2005.

WASHINGTON - Drug warriors in Congress are considering a bill that
would send parents to jail for at least three years if they learn
of drug activity near their children and fail to report it to
authorities within 24 hours.

One wonders if this a good idea, especially in areas such as
Baltimore, where intimidation and murder of government witnesses
are common. But when it comes to the criminal law, Congress rarely
pauses for reflection anymore.

In April, the bill’s author, Republican Rep. F. James
Sensenbrenner Jr. of Wisconsin, floated what might be called the
“Jail Janet Jackson” initiative. Instead of enforcing the Federal
Communications Commission’s indecency regulations with fines on
broadcasters, according to Mr. Sensenbrenner, those who violate the
regulations should be subject to arrest and imprisonment.

“I’d prefer using the criminal process rather than the
regulatory process,” he said. “Aim the cannon specifically at the
people committing the offenses.”

There are serious problems with Mr. Sensenbrenner’s proposal.
The FCC’s indecency standards are notoriously vague and of dubious
constitutionality. How could a policy that says “misspeak and go to
jail” not end up chilling constitutionally protected speech?

More fundamentally, is this an appropriate use of the criminal
sanction? Do we really want to lock people up for bad taste?

Mr. Sensenbrenner’s jail-centric approach reflects a broader
social phenomenon, and a troubling one. The criminal sanction is
supposed to be a last resort, reserved for the most serious
offenses to civil peace. But more and more, it’s becoming
government’s first line of attack - a way for lawmakers to show
that they’re serious about whatever is the perceived social problem
of the month.

Examples of reflexive criminalization abound. A bill to prevent
the transportation of horses for human consumption has 80
co-sponsors in Congress. If signed into law, it would join such
illustrious federal crimes as the interstate transport of water
hyacinths, trafficking in unlicensed dentures and misappropriating
the likeness of Woodsy Owl and his associated slogan, “Give a hoot,
don’t pollute” (punishable by up to six months in prison).

Because Congress criminalizes unreflectively, the federal
criminal code has become vast and incomprehensible. A research team
led by professor John Baker of Louisiana State Law School recently
estimated that there are more than 4,000 separate federal criminal
offenses. That number, inexact as it is, vastly understates the
breadth of the criminal law, because the federal criminal code, in
turn, incorporates by reference tens of thousands of regulatory
violations never voted on by Congress.

And this burgeoning culture of criminalization reverberates down
the law enforcement ladder as local police increasingly use
handcuffs and jail to deal with situations that clearly don’t
warrant it. In September, at a Washington, D.C., bus stop, a Metro
transit officer forced a pregnant woman to the ground and
handcuffed her for talking too loudly on her cell phone. In April,
in St. Petersburg, Fla., police were called into an elementary
school to handcuff an unruly 5-year-old girl.

One of our most destructive overcriminalization binges occurred
during the “Just Say No” era, when Congress embraced mandatory
minimum sentencing as a way to deal with the use of illicit drugs.
Making prison the solution to drug abuse has had staggering social
costs.

There are eight times as many women in prison as there were in
1980, and the drug war is a key factor in driving the incarceration
rate. In 2001, the average federal drug trafficking sentence was
72.7 months, more than double the average manslaughter sentence. In
addition to sending parents to jail for failure to testify against
drug dealers, Mr. Sensenbrenner’s bill would extend and enhance
mandatory minimum drug penalties, adding to the social costs of the
drug war.

The congressman is right to compare the criminal law to a
cannon: The criminal sanction is heavy artillery. It ought to be
reserved for those behaviors that warrant society’s strongest
condemnation and the loss of liberty that such behavior merits.
Wielding the cannon indiscriminately causes tremendous collateral
damage.

Decrying overcriminalization does not mean being soft on crime.
Just the opposite: Being tough on crime requires making intelligent
distinctions between conduct that truly threatens the public and
conduct better handled by fines or civil law, to say nothing of
conduct that’s really none of the government’s business. Those who
can’t make those distinctions, far from being tough on crime,
actually weaken the moral force of the criminal law. That’s a crime
in itself.